268 F. 334 | 6th Cir. | 1920
Defendant in error, as plaintiff, recovered verdict and judgment against plaintiff in error for damages on account of the death of decedent, caused by the falling of a large block of slate from the roof of defendant’s Kentucky coal mine, in which decedent was employed. The substantial questions presented relate, first, to the trial court’s refusal to direct verdict for defendant, and, second, to its failure to give a certain request to charge.
Considering, however, the case in its aspect most favorable to plaintiff, as we must in reviewing a denial of a motion to peremptorily direct verdict for defendant, it cannot be said, as matter of law, that the portion of the breakthrough in which decedent was when the slate fell
In view of these possible inferences, defendant was not entitled to a directed verdict. Under the common law, as administered by both federal and state courts, defendant owed decedent the nondelegable duty of reasonable care to.furnish him a'reasonably safe place to work. Dasher v. Hocking Mining Co. (C. C. A. 6) 212 Fed. 628, 631, 129 C. C. A. 164, and cases cited. The evidence amply supported a conclusion of defendant’s negligence. Defendant being so bound, decedent could properly act on the presumption that the duty had been performed, unless he -knew, or by the exercise of care should have known, of the defect and danger. Dasher v. Hocking Mining Co., supra, 212 Fed. at page 631, 129 C. C. A. at page 167, and cases cited; Hazard Coal Co. v. Wallace, 181 Ky. 636, 638, 205 S. W. 692; Mason, etc., Co. v. Kennison, 134 Ky. 844, 850, 121 S. W. 999. The testimony is not such as to show contributory negligence or an assumption by decedent of the risk, as matter of law. The common-law rule, which relieves a mine owner from the obligation to provide his employee a safe place to work, and throws upon the latter the responsibility of looking out for his own safety, where he is engaged in “making his own place,” and where the character of the work is such that the condition of the place as respects safety necessarily changes as the work progresses and by reason of such work, has no application where the work in which the employee is engaged does not necessarily change the character of the place as respects safety. Dasher v. Hocking Mining Co., supra, 212 Fed. at page 632, 129 C. C. A. at page 168, and cases cited; Hazard Coal Co. v. Wallace, supra, 181 Ky. at page 638, 205 S. W. at page 693; Evans Co. v. Ball, 159 Ky. 399, 406, 407, 167 S. W. 390.
The Kentucky statutes have not relaxed these rules as applied to the instant case. Subdivision 4 of section 2726 of the Kentucky Statutes expressly makes it the duty of the mine foreman or his assistant to visit and examine every working place in the mine not less than twice each week while the mine is in operation, to direct and see that every working place is properly secured by-props or timber, and that no per
The questions of defendant’s negligence, as well as of decedent’s contributory negligence and assumption of risk, were at least for the jury’s consideration. That is to say, neither question can, as matter of law, be answered in defendant’s favor.
The fact that the jury was instructed that, as matter of law the place within the breakthrough where the accident occurred was part of decedent’s place to work, cannot help defendant; for no exception was taken to the charge of the court in that respect, and the failure to except was not the result of inadvertence.
This instruction was properly refused. Rule 2 has no apparent pertinency to the situation presented. The same is true as to No. 15, which relates to the duties of trackmen. Decedent was not acting as a trackman in doing the work in question. He was called from his duties in another part of the mine to do labor of an entirely different character. Rule 7 also has no pertinency, for it relates to the duty of workmen to take down all loose or dangerous slate, or to otherwise make the roof safe by properly timbering it “before commencing to mine or load coal.” Decedent was not engaged in that occupation. Rule 17 declares it the duty of all employees to use the utmost care to avoid injuries to themselves and others, and to see that all tools, machinery, appliances, and equipment with which they have to deal in the performance of their duties are kept in safe condition or repair, and in case they discover any of them to be out of repair or in unsafe repair, they should render them safe, and if unable to do so report the defect to the mine foreman or his assistant. Obviously, this rule has no pertinency to the instant case, except so far as it may relate to the propping up of the roof. It is plain that the instruction asked for, so far as it related to that subject, was properly rejected, in view of the requirements of subsection 4 of section 2726 of the Kentucky Statutes, to which we have already referred. Defendant being charged with the statutory duty referred to, having notice that the place to which decedent was sent was apparently dangerous, and having sent him there upon a special mission, not as a trackman or to carry on mining operations therein, but merely to perform that special mission, cannot, by means of the rule in question, evade its responsi
The judgment should be affirmed.